FL401 Application for: a non-molestation order / an occupation order (10.97)

Transcription

1 Application for: a non-molestation order an occupation order Family Law Act 1996 (Part IV) To be completed by the court Date issued Case number The court 1 About you (the applicant) Please read the accompanying notes as you complete this form. State your title (Mr, Mrs etc), full name, address, telephone number and date of birth (if under 18): State your solicitor s name, address, reference, telephone, FAX and DX numbers: 2 About the respondent State the respondent s name, address and date of birth (if known): 3 The Order(s) for which you are applying This application is for: a non-molestation order an occupation order Tick this box if you wish the court to hear your application without notice being given to the respondent. The reasons relied on for an application being heard without notice must be stated in the statement in support. FL401 Application for: a non-molestation order / an occupation order (10.97) 1 Printed on behalf of The Court Service

2 4 Your relationship to the respondent (the person to be served with this application) Your relationship to the respondent is: Please tick only one of the following 1 Married 2 Were married 3 Cohabiting 4 Were cohabiting 5 Both of you live or have lived in the same household 6 Relative State how related: 7 Agreed to marry. Give the date the agreement was made. If the agreement has ended, state when. 8 Both of you are parents of or have parental responsibility for a child 9 One of you is a parent of a child and the other has parental responsibility for that child 2

3 10 One of you is the natural parent or grandparent of a child adopted or freed for adoption, and the other is: (i) the adoptive parent or (ii) a person who has applied for an adoption order for the child or (iii) a person with whom the child has been placed for adoption or (iv) the child who has been adopted or freed for adoption. State whether (i), (ii), (iii) or (iv): 11 Both of you are parties to the same family proceedings (see also Section 11 below). 5 Application for a non-molestation order If you wish to apply for a non-molestation order, state briefly in this section the order you want. Give full details in support of your application in your supporting evidence 6 Application for an occupation order If you do not wish to apply for an occupation order, please go to section 9 of this form. (A) State the address of the dwelling house to which your application relates: (B) State whether it is occupied by you or the respondent now or in the past, or whether it was intended to be occupied by you or the respondent: 3

4 (C) State whether you are entitled to occupy the dwelling-house: Yes No If yes, explain why: (D) State whether the respondent is entitled to occupy the dwelling-house: Yes No If yes, explain why: On the basis of your answer to (C) and (D) above, tick one of the boxes 1 to 5 below to show the category into which you fit. 1 a spouse who has matrimonial home rights in the dwelling-house, or a person who is entitled to occupy it by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation. If you tick box 1, state whether there is a dispute or pending proceedings between you and the respondent about your right to occupy the dwelling-house. 2 a former spouse with no existing right to occupy, where the respondent spouse is entitled. 3 a cohabitant or former cohabitant with no existing right to occupy, where the respondent cohabitant or former cohabitant is so entitled. 4 a spouse or former spouse who is not entitled to occupy, where the respondent spouse or former spouse is also not entitled. 5 a cohabitant or former cohabitant who is not entitled to occupy, where the respondent cohabitant or former cohabitant is also not entitled. 4

5 Matrimonial Home Rights If you do have matrimonial home rights please: State whether the title to the land is registered or unregistered (if known): If registered, state the Land Registry title number (if known): If you wish to apply for an occupation order, state briefly here the order you want. Give full details in support of your application in your supporting evidence. 7 Application for additional order(s) about the dwelling house If you want to apply for any of the orders listed in the notes to this section, state what order you would like the court to make: 8 Mortgage and rent Is the dwelling house subject to a mortgage? Yes No If yes, please provide the name and address of the mortgagee: Is the dwelling house rented? Yes No If yes, please provide the name and address of the landlord: 5

6 9 At the court Will you need an interpreter at court? Yes No If Yes, specify the language: If you need an interpreter because you do not speak English, you are responsible for providing your own. If you need an interpreter or other facilities because of a disability, please contact the court to ask what help is available. 10 Other information State the name and date of birth of any child living with or staying with, or likely to live with or stay with, you or the respondent: State the name of any other person living in the same household as you and the respondent, and say why they live there: 11 Other Proceedings and Orders If there are any other current family proceedings or orders in force involving you and the respondent, state the type of proceedings or orders, the court and the case number.this includes any application for an occupation order or non-molestation order against you by the respondent. This application is to be served upon the respondent Signed Date 6

7 Application for a non-molestation order or occupation order Notes for Guidance Section 1 If you do not wish your address to be made known to the respondent, leave the space on the form blank and complete Confidential Address Form C8. The court can give you this form. If you are under 18, someone over 18 must help you make this application. That person, who might be one of your parents, is called a next friend. If you are under 16 you need permission to make this application. You must apply to the High Court for permission, using this form. If the High Court gives you permission to make this application, it will then either hear the application itself or transfer it to a county court. Section 3 An urgent order made by the court before notice of the application is served on the respondent is called an ex-parte order. In deciding whether to make an ex-parte order the court will consider all the circumstances of the case, including: any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved. If the court makes an ex-parte order, it must give the respondent an opportunity to make representations about the order as soon as just and convenient at a full hearing. Harm in relation to a person who has reached the age of 18 means ill-treatment or the impairment of health, and in relation to a child means ill-treatment or the impairment of health and development. Ill-treatment includes forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse. The court will require evidence of any harm which you allege in support of your application. This evidence should be included in the statement accompanying this application. Section 4 For you to be able to apply for an order you must be related to the respondent in one of the ways listed in this section of the form. If you are not related in one of these ways you should seek legal advice. Cohabitants are a man and a woman who, although not married to each other, are living or have lived together as husband and wife. People who have cohabited, but have then married will not fall within this category, but will fall within the category of married people. Those who live or have lived in the same household do not include people who share the same household because one of them is the other s employee, tenant, lodger or boarder. You will only be able to apply as a relative of the respondent if you are: (A) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of the respondent or of the respondent s spouse or former spouse. (B) the brother, sister, uncle, aunt, niece or nephew (whether of the full blood or of the half blood or by marriage) of the respondent or of the respondent s spouse or former spouse. This includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within (A) or (B) if the parties were married to each other (for example, your cohabitee s father or brother). Agreements to marry: You will fall within this category only if you make this application within three years of the termination of the agreement. The court will require the following evidence of the agreement: evidence in writing or the gift of an engagement ring in contemplation of marriage or evidence that a ceremony has been entered into in the presence of one or more other persons assembled for the purpose of witnessing it. Parents and parental responsibility: You will fall within this category if both you and the respondent are either the parents of a child or have parental responsibility for that child or if one of you is the parent and the other has parental responsibility. Under the Children Act 1989, parental responsibility is held automatically by a child s mother, and by the child s father if he and the mother were married to each other at the time of the child s birth or have married subsequently. Where this is not the case, parental responsibility can be acquired by the father in accordance with the provisions of the Children Act Section 5 A non-molestation order can forbid the respondent to molest you or a relevant child. Molestation can include, for example, violence, threats, pestering and other forms of harassment. The court can forbid particular acts of the respondent, molestation in general, or both. Section 6 If you wish to apply for an occupation order but you are uncertain about your answer to any of the questions in this part of the application form, you should seek legal advice. (A) A dwelling-house includes any building or part of a building which is occupied as a dwelling; any caravan, houseboat or structure which is occupied as a dwelling; and any yard, garden, garage or outhouse belonging to it and occupied with it. 71

8 Section 6 (continued) (C) & (D) The following questions give examples to help you to decide if you or the respondent, or both of you, are entitled to occupy the dwelling-house: (a) Are you the sole legal owner of the dwelling-house? (b) Are you and the respondent joint legal owners of the dwellinghouse? (c) Is the respondent the sole legal owner of the dwelling-house? (d) Do you rent the dwelling-house as sole tenant? (e) Do you and the respondent rent the dwelling-house as joint tenants? (f) Does the respondent rent the dwelling house as sole tenant? If you answer Yes to (a), (b), (d) or (e) you are likely to be entitled to occupy the dwelling-house Yes to (c) or (f) you may not be entitled (unless, for example, you are a spouse and have matrimonial home rights - see the notes under Matrimonial Home Rights below) Yes to (b), (c), (e) or (f), the respondent is likely to be entitled to occupy the dwelling-house. Yes to (a) or (d) the respondent may not be entitled (unless, for example, he is a spouse and has matrimonial home rights). Box 1 For example, if you are sole owner, joint owner, or if you rent the property. If you are not a spouse, former spouse, cohabitant or former cohabitant of the respondent, you will only be able to apply for an occupation order if you fall within this category. If you answer Yes to this question, it will not be possible for a magistrates court to deal with the application, unless the court decides that it is unnecessary for it to decide this question in order to deal with the application or make an order. If the court decides that it cannot deal with the application, it will transfer the application to a county court. Box 2 For example, if the respondent was married to you and is sole owner or rents the property. Box 3 For example, if the respondent is or was cohabiting with you and is sole owner or rents the property. Matrimonial Home Rights Where one spouse is entitled to occupy the dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, the spouse who is not entitled has matrimonial home rights. These are a right, if the spouse is in occupation, not to be evicted or excluded from the dwelling house except with the leave of the court and, if the spouse is not in occupation, the right with the leave of the court to enter into and occupy the dwelling-house. Matrimonial home rights do not exist if the dwelling-house has never been, and was never intended to be, the matrimonial home of the two spouses. If the marriage has come to an end, matrimonial home rights will also have ceased, unless a court order has been made during the marriage for the rights to continue after the end of the marriage. Occupation Orders The possible orders are: If you have ticked box 1 above, an order under section 33 of the Act may: enforce the applicant s entitlement to remain in occupation as against the respondent require the respondent to permit the applicant to enter and remain in the dwelling-house or part of it regulate the occupation of the dwelling-house by either or both parties if the respondent is also entitled to occupy, the order may prohibit, suspend or restrict the exercise by him, of that right restrict or terminate any matrimonial home rights of the respondent require the respondent to leave the dwelling-house or part of it exclude the respondent from a defined area around the dwellinghouse declare that the applicant is entitled to occupy the dwelling-house or has matrimonial home rights in it provide that matrimonial home rights of the applicant are not brought to an end by the death of the other spouse or termination of the marriage. If you have ticked box 2 or box 3 above, an order under section 35 or 36 of the Act may: give the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for a specified period prohibit the respondent from evicting or excluding the applicant during that period give the applicant the right to enter and occupy the dwelling house for a specified period require the respondent to permit the exercise of that right regulate the occupation of the dwelling-house by either or both of the parties prohibit, suspend or restrict the exercise by the respondent of his right to occupy require the respondent to leave the dwelling-house or part of it exclude the respondent from a defined area around the dwellinghouse. If you have ticked box 4 or box 5 above, an order under section 37 or 38 of the Act may: require the respondent to permit the applicant to enter and remain in the dwelling-house or part of it regulate the occupation of the dwelling-house by either or both of the parties require the respondent to leave the dwelling-house or part of it exclude the respondent from a defined area around the dwellinghouse. 28

9 Section 6 (continued) You should provide any evidence which you have on the following matters in your evidence in support of this application. If necessary, further statements may be submitted after the application has been issued. If you have ticked box 1, 4 or 5 above, the court will need any available evidence of the following: the housing needs and resources of you, the respondent and any relevant child the financial resources of you and the respondent the likely effect of any order, or of any decision not to make an order, on the health, safety and well-being of you, the respondent and any relevant child the conduct of you and the respondent in relation to each other and otherwise. If you have ticked box 2 above, the court will need any available evidence of: the housing needs and resources of you, the respondent and relevant child the financial resources of you and the respondent the likely effect of any order, or of any decision not to make an order on the health, safety and well-being of you, the respondent and any relevant child the conduct of you and the respondent in relation to each other and otherwise. the length of time that has elapsed since you and the respondent ceased to live together the length of time that has elapsed since the marriage was dissolved or annulled the existence of any pending proceedings between you and the respondent: under section 23A of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc. or or under Schedule 1 para 1(2)(d) or (e) of the Children Act 1989 (orders for financial relief against parents) relating to the legal or beneficial ownership of the dwelling-house. If you have ticked box 3 above, the court will need any available evidence of: the housing needs and resources of you, the respondent and any relevant child the financial resources of you and the respondent the likely effect of any order, or of any decision not to make an order, on the health, safety and well-being of you, the respondent and any relevant child the conduct of you and the respondent in relation to each other and otherwise the nature of you and the respondent s relationship the length of time during which you have lived together as husband and wife whether you and the respondent have had any children, or have both had parental responsibility for any children the length of time which has elapsed since you and the respondent ceased to live together the existence of any pending proceedings between you and the respondent under Schedule 1 para 1(2)(d) or (e) of the Children Act 1989 or relating to the legal or beneficial ownership of the dwelling-house. Section 7 Under section 40 of the Act the court may make the following additional orders when making an occupation order: impose on either party obligations as to the repair and maintenance of the dwelling-house impose on either party obligations as to the payment of rent, mortgage or other outgoings affecting it order a party occupying the dwelling-house to make periodical payments to the other party in respect of the accommodation, if the other party would (but for the order) be entitled to occupy it grant either party possession or use of furniture or other contents order either party to take reasonable care of any furniture or other contents order either party to take reasonable steps to keep the dwellinghouse and any furniture or other contents secure. Section 8 If the dwelling-house is rented or subject to a mortgage, the landlord or mortgagee must be served with notice of the proceedings in Form FL416. He or she will then be able to make representations to the court regarding the rent or mortgage. Section 10 A person living in the same household may, for example, be a member of the family or a tenant or employee of you or the respondent. 39